from the good-luck,-viacom dept

It surprised no one last year when Viacom appealed the complete smackdown it got from the district court in its lawsuit against YouTube. As I noted when the appeal was filed, Viacom's arguments made very little sense, and in YouTube's response (which apparently hasn't yet been filed, but will be shortly), it seems that the company does a nice job debunking each of Viacom's arguments. The key point in this has been focused on the whole "red flag" question, of whether or not the red flag parts of the DMCA meant that YouTube gave up its safe harbors, despite its proactive stance on taking down content when alerted to it being infringing. Viacom is trying to change the plain meaning of the statute into meaning that a service provider must proactively investigate and see if it can find infringing material. YouTube points out that this is not what the law says.

Congress crafted such a “high bar for finding ‘red flag’ knowledge” because
it recognized that it is challenging for service providers to distinguish infringing
from non-infringing material. UMG II, 665 F. Supp. 2d at 1111. No red flag
exists, therefore, where circumstances leave uncertain whether the material is
protected by copyright at all, or whether a particular use is licensed or, if
unlicensed, a fair use. H.R. Rep. 105-551(II), at 57-58. A service provider has no
“investigative duties” to make such determinations. CCBill, 488 F.3d at 1114.
Indeed, “if investigation of ‘facts and circumstances’ is required to identify
material as infringing, then those facts and circumstances are not ‘red flags.’”
UMG II, 665 F. Supp. 2d at 1108.

There is no room here for an approach that would convert generalized
information that unspecified infringement is occurring somewhere into red-flag
knowledge. Red flags, instead, are necessarily specific: they indicate unmistakably
that a given piece of material or a given activity using that material is infringing.
And they create an obligation for the service provider to expeditiously remove that
particular material. That does not render red-flag knowledge duplicative of actual
knowledge. The red-flag provision does independent work, establishing that a
service provider can lose DMCA protection by failing to remove a given item,
even if the plaintiff cannot prove that the provider subjectively thought the item
was infringing.

The filing also goes through many of the arguments we've seen before, including debunking the simply ridiculous claim from Viacom and its supporters that knowing that some people could use the service for infringing purposes means a loss of safe harbors. If that's the case, then there are no safe harbors. The filing also notes that, contrary to the "straw man" suggested by Viacom, saying that a service provider needs specific knowledge does not mean that the red flag provisions are meaningless. It just means that YouTube must have specific knowledge that the works were infringing, and the court reasonably established that YouTube did not have that with the clips that Viacom was complaining about (in part because even Viacom wasn't always sure which clips were infringing, and which it had uploaded itself).

The filing is pretty direct at points, not just in mentioning things like "straw men" arguments, but also in highlighting that Viacom's argument in one part "makes no sense." That claim was in reference to Viacom's weak attempt to claim that because YouTube very briefly had a feature to let users flag "infringing" works, but then took it away, that meant that YouTube had willful blindness. YouTube debunks that, pointing out that they wouldn't have even created the feature if it wanted to ignore infringement. The reason they got rid of the feature was because it didn't work, because users don't know if a work is infringing or authorized. At another point in the filing, YouTube more or less mocks Viacom's attempt to reinterpret the Grokster standard, quoting Viacom's language (which is quite different that the Supreme Court's) and says "whatever that means...."

The filing also reiterates the key point that highlights the pointlessness of Viacom's claims that YouTube must have known what was infringing: which is the extensive efforts by Viacom to upload its own stuff but make it look like it was infringing. Combined with this is the fact that Viacom allowed plenty of clips it found on YouTube to remain... even if they were infringing. As we pointed out last time, Viacom had a huge and ever-changing book of "rules" as to what got left up and what got taken down (i.e., what was authorized and what was not). YouTube did not have this book. Suggesting that YouTube should know what to take down here makes little sense.

As for the supposed "smoking gun" emails that supporters of Viacom's position always point to, beyond the fact that many were taken totally out of context, none of them show that YouTube knew of any Viacom content that was infringing.

When Viacom filed its appeal, one of the Viacom supporters in our comments highlighted a part of Viacom's filing that focused on the Congressional record, suggesting that Congress meant to codify common law vicarious liability rules into the DMCA. However, YouTube's response points out what Viacom supporters would like to ignore: that the Congressional record being quoted was for a preliminary version of the DMCA, not the final one, and that Congress specifically decided not to follow through on those suggestions. Oops.

There's a lot more in the filing, but it systematically destroys each of Viacom's questionable claims. It won't come as a surprise to anyone that I find YouTube's arguments here persuasive, and Viacom's ridiculous. The district court saw it as well, and hopefully the Appeals Court will agree. That this is happening in the same circuit that decided the Tiffany/eBay case, which noted that eBay was protected from liability in trademark law -- where there aren't even the safe harbors that copyright law has -- would seem to bode well for YouTube. It suggests that YouTube's actions taking down content it knew was infringing clearly meet the standards necessary to be free from liability for videos uploaded by users. Either way, the filing is a fun read if you want to see a rather systematic takedown of Viacom's weak arguments.

Good news there. I think that if laws were written in plain language rather than legalese, there would be a lot fewer arguments over interpretation. But then, that would mean less work for the lawyers, so it'll never happen, unfortunately.

'Red Flags' and 'Pirate' Sites

I think it's worth noting that in Senate Report on the DMCA, the whole purpose of the 'red flag' knowledge requirement is to exclude 'pirate' sites or directories from safe harbors. While I think this is a difficult definition in and of itself, the Senate's discussion of 'pirate' sites pretty clearly excludes sites like Youtube, in that it describes them as sites where the URL typically describes the site as 'bootleg' and 'pirate.' Again, I think this definition has it's own problems, but when you have a website like Youtube where Viacom is not sure which content it uploaded and which is infringing, it becomes a lot clearer that Youtube falls outside the scope of the intended purpose of the 'red flag' knowledge provision for its content, and since it's not a directory that scrapes content from other sites, again, there is no good way to make the requirement stick (at least according to its intended purpose).

Re: All this begs one question

Re: Re: 'Red Flags' and 'Pirate' Sites

Ha! I'm talking about the name, like the pirate bay. And it also mentions header information as a place where the terms can be found to indicate a site like this. But you're right, it would definitely be funny, and what with the whole push for allowing vanity TLDs, it is possible we could see that.

What I'd like to see come from this ruling...

... is along with the quash against Viacom, that YouTube be absolved of any further lawsuits by any party claiming "infringement" and that if said video is in violation of copyright law, they contact the account user who uploaded the damn thing to begin with and ask them to take it down.

It's not surprising to see Viacom continue this battle, given the potential payout should they win. Of course, with $1billion dollars, that's nothing when comparing to the box office receipts earned last year with no thanks to piracy.

Worse: should Viacom win, that $1billion would be wasted on other lawsuits, since it now will have "Lawyer Funding Maximized" power.

Sadly, what YouTube is doing is priming the pump for changes in legislation that will move from a "innocent until proven guilty" system of DMCA towards a more "prove you have the rights" system, which is likely to come due to pressure from the content producers.

Youtube is making it clear that they don't want to be responsible for what people give them to publish. It isn't a tolerable situation.

Re: Re:

Arguments on both side are "reasoned", but Youtube is arguing from a weak position: They business is predicated on ignoring copyright. They didn't develop a business model that allows them to pre-screen submissions, they don't ask for enough information about contributors, and they don't check what they publish on their site.

Even if they manage to sneak in under the current laws, the reality is that the situation isn't tolerable, and will change.

In the interest of fairness and full disclosure, the link below enables the review of all briefs filed to date by the parties and various amici. The briefs will increase in number when the appellant files its reply brief, and the respondent files its respose to the reply brief.

Re: Re: Re:

How exactly? The fact that they have already won shows that you're wrong. If they were arguing from a weak position, the appeal would be from them, not from Viacom.

They business is predicated on ignoring copyright.

You keep using that word. I do not think it means what you think it means.

"Predicated" means "based on". As it's obvious to anyone who understands copyright that it's *not* based on ignoring copyright, you obviously don't understand what the word means.

They didn't develop a business model that allows them to pre-screen submissions

Please show how "pre-screening" would be accomplished, and how it's a requirement of copyright law.

they don't ask for enough information about contributors

Again, a judge and jury says you are wrong.

they don't check what they publish on their site.

"Check" with whom? And about what?

Anybody can make a video. Are they supposed to ask every single person on the planet if each upload is "infringing"? How exactly would they go about doing that, and why is it that other entities - like Viacom - are not required to do the same thing?

Re: Re: Re:

...Youtube is arguing from a weak position: They business is predicated on ignoring copyright. They didn't develop a business model that allows them to pre-screen submissions, they don't ask for enough information about contributors, and they don't check what they publish on their site.

That's just plain silly. YouTube developed their business model based on the DMCA 512 safe harbors.

Congress included the safe harbors with the DMCA laws to promote growth on the internet. YouTube proves that congress' decision was a good one.

Re: Re: Re:

If all this nonsense you keep spouting was true, ISP's are screwed because they obviously don't do enough to screen people, Amazon would be screwed, Craiglists, Facebook, Tweeter, Vimeo, and a tone of others would be f'ed, the killer of elephants from GoDaddy would be screwed and he is a f'ing rat he doesn't stand up for customers one bit.

The industry clearly only wants to pass their own responsibilities for their own market onto others, and that is just shameful behavior, those people have no morals and deserve all the pain the people will give them.

Re: Re: All this begs one question

YouTube is writing the new maximalist rules for lobbyists

These are all clearly good arguments, but my fear is they're inadvertently writing the future amendments to copyright law in their presentation. Congress wrote a good law (for a change) and now the maximalists will have to have it amended to prevent all the defenses against their misguided actions. Here they are!

Mike - their brief does a lot of demolishing if the facts were true, and if Viacom's position was the position that they characterized it as. In fact, Google and Youtube decided not to even test filtering in early 2006, and then decided to filter ONLY for people who they had a business deal with. All the dissembling and misstatements aside (you should look at the actual emails, rather than just Google's distortions) - those facts are really uncontroverted. Viacom's not asking for perfection, instead it is invoking the perfectly reasonable rules of Grokster (and actually supported by Tiffany's) that you don't get a defense to the extent you willfully blind yourself to the facts. "Willful blindness is knowledge in copyright, as it is in the law generally" - Judge Posner

Re:

Mike - their brief does a lot of demolishing if the facts were true, and if Viacom's position was the position that they characterized it as. In fact, Google and Youtube decided not to even test filtering in early 2006, and then decided to filter ONLY for people who they had a business deal with.

And yet, despite certain suggestions from a certain company you may be familiar with, the DMCA does not require filters, so the above statement is meaningless.

All the dissembling and misstatements aside (you should look at the actual emails, rather than just Google's distortions) - those facts are really uncontroverted. Viacom's not asking for perfection, instead it is invoking the perfectly reasonable rules of Grokster (and actually supported by Tiffany's) that you don't get a defense to the extent you willfully blind yourself to the facts. "Willful blindness is knowledge in copyright, as it is in the law generally" - Judge Posner

Funny you should mention that, because (as I assume you well know), folks at Viacom stated quite clearly that "YouTube is no Grokster." You've heard about that email, haven't you?